B08.03 Questions and Answers 2 - W912HQ24R0010 - CWIFP Legal Advisory Services.docx

Question 1:

Are we correct in our understanding that (a) the RFP is requesting prospective firms to provide a firm fixed fee quote for only one individual transaction for each of tasks 5.1, 5.2, 6.1, and 6.2 (in addition to a firm fixed fee quote for task 5.3 and an cost-plus fixed fee quote for task 7.1), and (b) it is possible that different transactions will be awarded to different firms? Or should the pricing proposal submitted by firms present the cost for advising with respect to all transactions contemplated under such tasks? For instance, we note the language in Task 5.1 states “The award will consist of four (4) unique municipal transactions,” which suggests that Task 5.1 should present a price quote for four total transactions.

Answer 1: Prices proposed should be per unit, i.e., if CLIN 0001 has 4 transactions, USACE needs a proposed price per each transaction and a subtotal for the respective task/CLIN. It is possible USACE will award option tasks to the awardee to include up to sixteen (16) additional municipal transactions and up to two (2) additional corporate transactions. This solicitation will result in one single contract award.

Question 2:

The Conflicts of Interest policy in Section 8.0 acknowledges the multi-faceted role of USACE and the fact that many legal advisory firms are adverse to USACE on matters unrelated to the CWIFP program. However, the policy does not fully waive the possible conflicts of interest that might arise from such activities. Other federal government agencies that are similarly situated have incorporated language similar to that produced below; can USACE incorporate such language into Section 8.0?

“1. It is agreed that the following activities do not and will not constitute a conflict of interest and the Contractor will be permitted to represent other clients in such activities, even where such other client’s interests differ from or are directly adverse to those of USACE or the Department of the Army (the “Department”), so long as the Contractor’s client is not the Applicant for which the Contractor is retained to serve as transaction counsel on behalf of USACE CWIFP and such representation is otherwise consistent with the D.C. Rules of Professional Conduct:

2. Concurrent representation of both USACE or the Department, on the one hand, and any other client, on the other hand, in a matter where USACE or the Department, as applicable, and the other client’s interests are adverse may raise concerns for the USACE CWIFP about the possible dilution of the loyalty and zeal of the lawyers representing USACE or the Department, as applicable, and the potential disclosure or use of USACE’s or the Department’s, as applicable, confidential information to its detriment. To allay these concerns, where USACE CWIFP requests that the Contractor do so or where the Contractor believes that it has confidential information from one client that may be relevant to another client in connection with a concurrent representation where the Contractor’s clients have prospective adverse interests (such as where it act for competing bidders or are representing more than one client before government agencies in relation to the same investigation), the Contractor will promptly institute an ethical screen between the teams of lawyers providing services to each of USACE or the Department, on the one hand, and the other client, on the other hand, respectively.

3. USACE CWIFP, on behalf of USACE and the Department, confirms its understanding that the Contractor may rely on this agreement in undertaking representations adverse to USACE’s or the Department’s interests without specifically notifying the USACE CWIFP either at the time of undertaking such work or upon agreeing to a new representation of USACE, the Department, or the affiliates of either. Subject to the Contractor’s compliance with the terms of this agreement, USACE CWIFP also agree that it will not, for USACE, the Department, or any other party assert that either the Contractor’s representation of USACE, the Department, or any affiliates of either in a past, present, or future matter or the Contractor’s actual or possible possession of confidential information belonging to USACE the Department, or any affiliates of either is a basis to disqualify the Contractor from acting for any other client, to seek Bar discipline or to otherwise assert that the Contractor has breached its ethical duties.”

Answer 2: The language in the Performance Work Statement remains unchanged. Conflicts of interest will be handled in accordance with Section 8 of the Performance Work Statement included as part of the solicitation and the applicable ethics laws.

Question 3:

Given the volume of the requirements set forth in the RFP and the request for third party clients to complete past performance questionnaires, we request that USACE CWIFP extend the deadline for submission to allow adequate time to prepare a proposal.

Answer 3: The submission response due date and time are extended.

Question 4:

Section 8.3 of the Conflict of Interest Policy provides that Key Personnel may not (2) represent any applicant or borrower seeking assistance from the CWIFP programs or (3) represent any entity in any matter in which USACE is a party. The RFP notes that applicants can be expected to include utilities. Many of the personnel at our firm with the expertise that USACE seeks for the CWIFP program regularly advise utilities on matters unrelated to the CWIFP program and represent clients whose projects involve permits or other regulatory action by USACE. We request that USACE revise or delete sub-paragraphs (2) and (3) of Section 8.3 to permit such representations.

Answer 4: The language in the Performance Work Statement remains unchanged. Conflicts of interest will be handled in accordance with this Section 8 of the Performance Work Statement included as part of the solicitation and the applicable ethics laws.

Question 5:

Attachment 1 appears to include an Option Task 7.0 titled Template Term Sheet and Loan Agreement. This appears to be duplicative of Task 5.3, which is also included in Attachment 1. In the RFP Task 7.0 appears to be an optional task related to Strategic Support. Please clarify.

Answer 5: The PWS is correct. The template was revised accordingly.

Question 6:

In completing Attachment 1 (Price Proposal), for each fixed price task, should offerors break down each Task by the applicable subtask components (Legal Due Diligence; Loan Documentation and Negotiation; Closing Activities; Post-Closing Activities), or aggregate all subtasks into a single line item for the Task (including all subtasks) in its entirety?

Answer 6: USACE does not require this information for pricing in Attachment 1. The level of effort proposed for each subtask, will assist with technical review. Accordingly, this information is required within Volume I. The SF1449 Solicitation was amended accordingly.

Question 7:

Could USACE confirm whether annual Contractor Performance Evaluations available on CPARS (which address work on all matters performed for the applicable client and not only matters included in our description of past performance) are acceptable in lieu of requesting project-specific Past Performance Questionnaires from the applicable clients?

Answer 7: CPARS detailing all matters performed for the applicable client will be considered. Page limitations and the Past Performance rating scheme remain unchanged. i.e., Relevancy.

Question 8:

If acceptable, does USACE seek to receive CPARS Contractor Performance Evaluations for each year during which work was performed on one or more of the projects included in our description of past performance or will the most recent annual contractor performance evaluations suffice?

Answer 8: USACE will only consider information from within the previous three years from the date the solicitation was posted. As stated in the solicitation, a final CPARS is required where available. For projects that are in-progress, an annual CPARS may be provided.

Question 9:

Will a statement under FAR 212-3(b)(2) confirming our SAM registration and verifying that the Representations and Certifications have been entered or updated within the last 12 months, are current, accurate and complete, and applicable to this Solicitation satisfy the request to submit a printout of those items?

Answer 9: Yes, a one-page memo stating the offeror’s representations in SAM are current, accurate and complete is sufficient. The Contracting Officer will be reviewing all representations and certifications on SAM.gov.

Question 10:

Task 7.0 is listed in the solicitation PDF as "7.0 Optional Strategic Support Task (Cost-Plus Fixed Fee Basis)" and in the Excel template as "option Task 7.0 Template Term Sheet and Loan Agreement" (identical wording to Task 5.3). Can USACE confirm that the solicitation PDF description is the operative one?

Answer 10: The PWS is correct. The template was revised accordingly. See also the Answer to Question 5.